Fields v. State, 2-676A218

Citation174 Ind.App. 294,367 N.E.2d 36
Decision Date21 September 1977
Docket NumberNo. 2-676A218,2-676A218
PartiesDarrell Wayne FIELDS, Appellant, v. STATE of Indiana, Appellee.
CourtCourt of Appeals of Indiana

Barteau & Deal, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., John P. Avery, Deputy Atty. Gen., Indianapolis, for appellee.

SULLIVAN, Presiding Judge.

Fields appeals his armed robbery conviction. 1

The evidence most favorable to the State establishes that an individual identified as Fields entered the Indiana Central Pharmacy and walked to the record rack. When the other customers had left the store, the cashier, Ms. Edna Dean, approached Fields and asked if he needed assistance. Fields began walking towards her with a gun in his hand and, threatening to kill her if she made any noise, demanded all the money in the cash register. Dean opened the cash register and gave Fields all the money, which totalled about $130. Fields then made Dean lie prone on the floor while he effected his getaway.

Fields asserts two errors:

(1) That the trial court abused its discretion in refusing to permit filing of a second alibi notice on the first day of trial, and;

(2) That the trial court erred in refusing cross-examination of two state's witnesses regarding an allegedly suggestive pre-trial line-up.

We affirm.

I. ALIBI EVIDENCE PROPERLY EXCLUDED

I.C. 35-5-1-1 (Burns Code Ed. 1975) provides that a defendant shall serve notice of his alibi defense upon the prosecuting attorney not less than 10 days before trial. I.C. 35-5-1-3 (Burns Code Ed. 1975) mitigates the potential harshness of a strict application of the 10-day period by allowing the court, in the exercise of its discretion, to extend the time for filing. It further provides:

". . . At the trial, if it appears that the defendant has failed to file and to serve upon the prosecuting attorney the defendant's original notice of alibi as prescribed herein, the court shall, in the absence of a showing of good cause for such failure by the defendant, exclude evidence offered by the defendant to establish an alibi. . . ."

Fields had filed a notice of alibi on December 29, 1975, alleging that he was with his brother during the time the offense in question was committed. On January 14, 1976, the first day of trial, Fields moved for leave of court to file a belated notice of alibi which placed Fields with another person on the date of the offense. An affidavit was submitted stating that Ms. Edna Plowman, who had been on Fields' witness list since November 5, 1975, had determined (on January 13, 1976) that Fields was with her on the date of the offense. The affidavit further stated that counsel for the defense was informed of this fact for the first time on January 13, 1976. After argument, the trial court denied the motion.

The statute does not appear to contemplate the situation before us. It speaks in terms of excluding alibi testimony or granting an exception for "good cause" shown if defendant has failed to file and serve an original notice of alibi. We do not believe that the General Assembly envisioned a "good cause" showing for failure to file notice of an alibi inconsistent with a timely filed alibi notice.

Even were it otherwise, we see no showing of good cause as a matter of law. Such showing would be essential to reversal for abuse of trial court discretion in excluding the proffered alibi testimony.

Any potential alibi is peculiarly within the knowledge of the defendant. Where compliance with the statute is lacking, the defendant bears the burden to show sufficient cause to put aside the statutory requirements. Stapp v. State (1972) 259 Ind. 330, 287 N.E.2d 252. Fields has not met that burden merely by filing an affidavit, the author of which he knew at least two months prior to trial was to testify in his behalf.

The bald assertion that the information only became available on the day of the trial does not, without more, demonstrate sufficient good cause to require reversal based upon an abuse of discretion. To so hold would thwart the policies of the statute so clearly enunciated in Hampton v. State (3d Dist. 1977) Ind.App., 359 N.E.2d 276 at 278. It was no abuse of discretion for the trial court to fulfill these policies by preventing the assertion of an "eleventh hour defense". Doubly so, when the...

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4 cases
  • Dooley v. State
    • United States
    • Indiana Supreme Court
    • November 13, 1981
    ...v. State, (1979) Ind., 398 N.E.2d 1254, 1257; Stapp v. State, (1972) 259 Ind. 330, 333, 287 N.E.2d 252, 253-54; Fields v. State, (1977) Ind.App., 367 N.E.2d 36, 38. III. Between the time of the crime and the time of the trial, defendant gained a considerable amount of weight. When the State......
  • Mitchell v. State
    • United States
    • Indiana Supreme Court
    • December 21, 1979
    ...excluding any evidence relating to an alibi defense. Stapp v. State, (1972) 259 Ind. 330, 333, 287 N.E.2d 252, 253-54; Fields v. State, (1977) Ind.App., 367 N.E.2d 36, 38. III. Count eight of the information charged appellant Mitchell with being a habitual criminal. He was arraigned on that......
  • Hartman v. State
    • United States
    • Indiana Appellate Court
    • May 15, 1978
    ...to show sufficient cause to put aside the statutory requirements. Stapp v. State (1972), 259 Ind. 330, 287 N.E.2d 252; Fields v. State (1977), Ind.App., 367 N.E.2d 36. Where there is a showing of "good cause" for the defendant's failure to meet statutory requirements, the trial court may ad......
  • Lamb v. Thieme, 2-475A99
    • United States
    • Indiana Appellate Court
    • November 23, 1977

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